Gibbs v. State

Court of Appeals of Georgia, First Division

May 4, 2017

MILTON GIBBSv.THE STATE.

BARNES, P. J., MCMILLIAN and MERCIER, JJ.

Barnes, Presiding Judge.

Milton
Gibbs appeals his convictions of DUI - less safe and failure
to maintain lane. He argues that the trial court erred by
admitting evidence of his prior DUI conviction and that his
lawyer rendered ineffective assistance by failing to object
to the admission of that evidence. We find no error and
affirm.

Viewed
in a light favorable to the jury verdict, [1] the record shows
that at approximately 3:00 a.m. on April 20, 2014, Gibbs
drove his SUV off the roadway around a curve on a two-lane
road in Douglas County. The SUV struck a telephone pole
located approximately 30 feet off the road, breaking it in
half, and came to rest in a ditch. Gibbs, who was not
injured, called his brother-in-law for help removing the SUV
from the ditch. After his brother-in-law arrived at the
scene, Gibbs called his insurance company, which summoned a
tow truck. The tow truck driver arrived and dialed 911 after
seeing the damage to the telephone pole. A county
sheriff's deputy was dispatched to the scene, and she
requested that a Georgia State Patrol trooper investigate the
accident.

The
trooper arrived at 5:42 a.m. and spoke with Gibbs, who told
him that he had swerved to avoid hitting a deer that had run
into the road. The trooper, however, saw no yaw or skid marks
or any other evidence that Gibbs had swerved or braked. The
trooper concluded that Gibbs's vehicle had simply
"proceeded off the roadway . . . going straight towards
the pole." The trooper noticed a "slight odor of
alcoholic beverage coming from [Gibbs's] person and saw
that his eyes were watery and bloodshot. The trooper asked
Gibbs multiple times if he had been drinking, but Gibbs said
no. Gibbs also denied spilling alcohol on his clothing or
being around anyone that night who had been drinking. When
the trooper got closer to Gibbs, he determined that the
alcoholic smell was on Gibbs's breath. The trooper
performed a horizontal gaze nystagmus ("HGN") test
on Gibbs, which showed six out of six possible clues of
impairment. Gibbs told the trooper that he had an astigmatism
and weak muscle in one eye. The trooper responded that those
conditions would neither cause nystagmus nor affect the HGN
test, and the trooper later checked with a supervisor to
confirm that assessment. The trooper was unable to administer
other field sobriety tests because the terrain was
unsuitable.

The
trooper asked Gibbs to take a portable breath test that would
indicate the presence or absence of alcohol, but Gibbs
refused. Gibbs told the trooper that he was afraid the test
would detect medication, but the trooper assured him that it
would not. The trooper asked whether Gibbs was on medication,
and he said no. The trooper then arrested Gibbs, read him his
implied consent rights, and asked him to submit to a
state-administered test of his blood. Again, Gibbs refused. A
video of the encounter taken from a camera in the
trooper's patrol car was played for the jury.

Gibbs
was charged with failure to maintain lane and DUI - less
safe. Before trial, the State notified Gibbs that it intended
to introduce evidence of his prior DUI conviction. Defense
counsel did not object to the admission of this
evidence.[2] At trial, a Cobb County police officer
testified that he stopped Gibbs after seeing him weaving on
I-75 late one night in 2009; that he smelled alcohol on
Gibbs's person but Gibbs denied drinking; that he
administered the HGN test, which showed six out of six clues
of impairment; that Gibbs agreed to take a portable breath
test, which showed he had been drinking; and that Gibbs later
consented to a state-administered Intoxilyzer test of his
breath, which gave a reading of .110. Gibbs was arrested and
later pled guilty to DUI. A certified copy of the conviction
was entered into evidence.

Gibbs
took the stand in his own defense. He again claimed that he
had not been drinking on the night of April 20, 2014 and that
the accident had occurred because he swerved to avoid a deer.
He also stated that he had a "lazy eye" that
"wander[ed], " but he offered no proof that these
conditions would have affected his performance on the HGN
test. He testified that he refused to take the portable
breath test because he "didn't feel that [he] needed
to. [He] wasn't drinking."

The
jury found Gibbs guilty of both charges. He later filed a
motion for new trial, making the same arguments he makes here
- that the trial court erred by admitting the evidence of his
prior DUI and that his trial counsel was ineffective for
failing to object to that evidence under OCGA § 24-4-403
("Rule 403"). The trial court denied the motion,
ruling that the prior DUI was admissible under OCGA
§§ 24-4-404 (b) ("Rule 404 (b)") and
24-4-417 ("Rule 417") and that it was not unduly
prejudicial under Rule 403. Gibbs appeals.

1. It
is undisputed that Gibbs's trial counsel did not object
to the admission of evidence concerning the prior DUI.
Therefore, Gibbs waived any objection to the admissibility of
that evidence. See Johnson v. State, 276 Ga.App.
505, 509 (3) (a) (623 S.E.2d 706) (2005) ("a defendant
waives an objection to similar transaction evidence by not
protesting its introduction at trial").

2.
Gibbs also argues that his trial counsel rendered ineffective
assistance by failing to object to evidence of the prior DUI.
To prevail on a claim of ineffective assistance of trial
counsel, the defendant must show that his lawyer's
performance was deficient and that he was prejudiced by the
deficient performance. Aikens v. State, 297 Ga. 229,
231 (3) (773 S.E.2d 229) (2015). Because "[t]here is no
deficient performance when an attorney fails to object to
admissible evidence, " id., quoting Perera v.
State, 295 Ga. 880, 884-885 (3) (b) (763 S.E.2d 687)
(2014) (citation and punctuation omitted), we begin by
addressing whether the evidence in question was admissible.

Rule
417, enacted in 2011 as part of Georgia's new Evidence
Code, [3] provides in relevant part that in DUI
prosecutions, evidence that the accused committed another DUI
on a different occasion "shall" be admissible when
"[t]he accused refused in the current case to take the
state administered test required . . . and such evidence is
relevant to prove knowledge, plan, or absence of mistake or
accident." OCGA § 24-4-417 (a) (1). Based on the
presence of the word shall, the Supreme Court
concluded that Rule 417 "contains a presumption in favor
of the admission of such evidence." (Citation omitted.)
State v. Frost, 297 Ga. at 704. The Court further
ruled that evidence of a prior DUI "could strengthen the
inference that the factfinder could draw from [the
accused's] refusal to take the state-administered test
this time, that had he done so, it would have shown the
presence of alcohol." Monroe v. State, 340
Ga.App. 373 (2) (__ S.E.2d __) (Case No. A16A1932, decided
February 23, 2017), citing Frost, 297 Ga. at 304.

Specifically,
proof of Gibbs's prior DUI could allow the factfinder to
infer that

[Gibbs] had an awareness that his ingestion of an intoxicant
impaired his ability to drive safely. Such awareness, in
turn, would offer an explanation for why [Gibbs] refused the
test on this occasion, namely, that he was conscious of his
guilt and knew that the test results likely would ...

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